Carney said the criticism of Rivada Mercury’s financing arrangements was unfair.

“The fact is, that is the way the financing of these things works,” Carney said. “You don’t take out a mortgage until you’ve closed on the house. You don’t take out a loan until you’ve got a contract. It is fundamentally a lack of understanding on the part of the source-selection board about how these things are done and how they’re written.

“They seem not to appreciate that those highly confident letters were the result of a substantial amount of due diligence by all of those banks. They were not written on blind faith, and the fact that they say in the letters that ‘this is subject to final due diligence’ is the same thing that the bank tells you on any loan, until they send you the money. They have to have an out, but to suggest that means that substantial due diligence hadn’t already been done is a misunderstanding of how highly confident letters are issued. Those letters have been through credit committees, and they have been through due diligence, and they have put us through ringer on them to get the letters.”

Meanwhile, both the SSA and the SSEB expressed concerns about Rivada’s teaming agreements, which was determined to be a “significant weakness,” according to the court ruling.

“Rivada’s primary argument on this point—that the SSA wrongly imposed a “requirement” that Rivada have in place “executed subcontracts” pre-award—oversimplifies the agency’s basis for assigning it this significant weakness,” according to the court decision. “The SSEB report (on which the SSA relied) shows that the agency viewed Rivada’s lack of executed subcontracts as but one symptom of an underlying problem: that Rivada’s “proposed teaming agreements . . . fail[ed] to demonstrate any incentives or negative consequences in order to ensure the operation of the company to successfully build, deploy, and maintain the NPSBN …

“These concerns relate not to subcontracts that Rivada might eventually execute with the teaming members, but to the nature of the teaming agreements themselves. Had the teaming agreements bound the partners to one another and to the project in a more meaningful fashion, the agency might have had more confidence in the contributions each teaming member would make to the NPSBN’s success.”

Carney disagreed with the concerns raised by the SSA and the SSEB about the teaming agreements within the Rivada Mercury consortium.

“Outside of the teaming agreement we had with our MVNO partner, the teaming agreements were very fully formed and pretty explicit about people’s work shares and … responsibilities,” he said. “Again, they had all of the normal caveats that these things do—as, apparently, did AT&T’s, right? If you read the opinion, it’s pretty clear that AT&T’s teaming agreements weren’t really any better than ours, it’s just that the government thought that they would better be able to manage those relationships, based on their size, their history and so on.”

In contrast to the business-related concerns associated with the Rivada Mercury bid, the SSA “concluded that ‘AT&T’s business model contain[ed] minimal risks that could negatively impact or harm FirstNet and the NPSBN’s financial sustainability,’” according to the court decision.

“On the other hand, the SSA identified ‘several significant areas where AT&T’s proposal had unbalanced pricing and/or increased risk to FirstNet.’ Among these was the fact that AT&T proposed to extend Band 14 coverage to [rest of sentence redacted].”

Declan Ganley—co-CEO for Rivada Networks, which heads the Rivada Mercury consortium—has stated publicly that he believes broadband service should be free to public-safety entities. Rivada Mercury’s pricing model is not specified in the court decision, but the ruling does note the SSA’s determination that “Rivada ‘would incur costs higher than payments through the first five years of the contract.’”

Carney described the pricing concerns as “a little perverse.”

“Clearly, they felt that there were risks in our plan, but some of those risks came from our determination to keep costs as low as possible for public safety,” Carney said. “Yes, we were taking a business risk in keeping those costs to public safety low, and FirstNet penalized us for wanting to charge public safety as little as possible, and that is a little perverse, frankly.

“AT&T is being rewarded for making sure that police, fire and EMS departments around the country are going to pay higher prices than we would have charged. We don’t think that is consistent with the intent of the legislation or the spirit of the legislation. We find it regrettable that FirstNet structured its RFP in such a way that AT&T was rewarded for that.”